3. TRAMITACIONS EN CURS
3.10. PROCEDIMENTS QUE ES CLOUEN AMB L’ADOPCIÓ DE RESOLUCIONS
The poor level of transparency that features business transacted in congressional committees has frequently been denounced throughout the American experience, even in
389 Rule XXIX(3). 390 Rule XXIX(4).
391 See Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials, in U.S.
SENATE, Senate Manual containing the Standing Rules, Orders, Laws, And Resolutions Affecting the
Business of the United States Senate, 113th Congress, 1st Sess. (Washington, D.C., Gov’t Print. Off.,
2014) p. 223.
99
recent years393. In his autobiography, Robert La Follette, a U.S. Senator from Wisconsin 1906 through 1925, in addition to censuring parties’ practice of delegating the adoption of crucial decisions to an inner circle of chosen politicians, clearly described the state of frustration he found himself in detecting shortage of openness in committee activities394. The fact that a good deal of committee business is conducted in secret might be seen as an alarming issue, in consideration of the pivotal role committees have within the legislative branch of government. The scope of committee activities, indeed, covers all main functions vested in Congress, as it ranges from legislative drafting to executive branch oversight and even to policy formulation395. In general terms, at the heart of the congressional committee system are standing committees, i.e., the committees established by statute or resolution to operate permanently396. Welsh has characterized standing committees as “the workhorses of
393 See, e.g., P
ERLA NI, Open House Project group, September 4, 2007, available at https://groups.google.com/forum/#!topic/openhouseproject/H7QYJhuzpuU ("We just did a survey of what transcripts/audio/video is available from Congressional Committees […]. You’ll notice how many committees for which there is no audio, no video nor transcript available […]. Also, for the ones that do post video, either it’s not posted until months after or it’s posted, but not archived so if you miss it, you’ve missed it.”) (quoted in Free Government Information (FGI), Congressional
Committees - Secrecy and Delayed Transparency, available at http://freegovinfo.info/node/1405).
394 See ROBERT M.LA FOLLETTE, La Follette’s Autobiography: A Personal Narrative of Political
Experiences, 298-99 (Madison: The Robert M. La Follette Co., 1913) (“Since I came to the United
States Senate [, again] and again I have protested against secret hearings before Congressional committees upon the public business. I have protested against the business of Congress being taken into a secret party caucus and there disposed of by party rule; I have asserted and maintained at all times my right as a public servant to discuss in open Senate, and everywhere publicly, all legislative proceedings, whether originating in the executive sessions of committees, or behind closed doors of caucus conferences.”)
395 M
ICHAEL WELSH, An Overview of the Development of U.S. Congressional Committees, Law Librarians’ Society of Washington, D.C. publication (July 2008), p. 1 (arguing that “[b]esides their role in crafting legislation, [congressional committees] have become the instruments through which Congress oversees executive agencies and participates in formulating and overseeing national policy.”) As for the instruments to perform those functions, all types of committees are allowed to hold hearings and carry out investigations. Practice shows that only standing committees usually report out legislation, instead, as they are the category of committees more directly involved in legislative procedures. Id. Standing committees, indeed, are empowered to intervene significantly on ongoing legislation by sifting and amending bills before their final passage.
396 Welsh points out that when referred to standing committees, the adjective “permanent” should not
be meant in an absolute sense, especially with respect to the House of Representatives. Firstly, the House – unlike the Senate – lacks continuity, and thus it needs reconstituting when each new Congress commences its functions. Secondly, both the House and Senate enjoy discretion to abolish standing committees, provided that their own rules are amended accordingly. Id., at 1 note 1.
100
Congress.”397 The other types of committees, indeed, have a more restricted role within the overarching framework of Congress398.
Woodrow Wilson detected a “despotic principle” of secrecy in the carrying out of congressional activities399, and committee proceedings represent the paradigm of such secrecy400. Congressional committees, indeed, tend to deploy secrecy much more than it is invoked for floor debates and proceedings. Rudesill has noted that as of the nineteenth century, floor activities were kept secret only in exceptional circumstances, while committees continued to meet behind closed doors quite frequently, thereby following a tradition of secrecy that was typical of the Continental and Confederation Congresses401. This gap in the usage of secrecy between floor and committee activities – the Author points out – still exists today: on the one hand, the two Houses hold “open full chamber sessions to debate and pass the law,” with closed sessions taking place only sporadically; on the other hand, committees tend to carry out closed-door proceedings on a regular basis “to consider non-public information.”402 The secrecy of committee debates might stir up alarm, for, as Wilson observed, they are essential to molding legislation403. However, despite pointing out that public scrutiny is thwarted by the tendency “to shift the theatre of debate upon legislation from the floor of Congress to the privacy of the committee-rooms,”404 Wilson recommends
397 Id., at 1.
398 Select and special committees imply the existence of a contingency, and – therefore – are devised
to work temporarily, and established just to achieve a given purpose. Ibid. Once the purpose is reached, their mission is accomplished, so they should cease to exist. In fact, select committees tend to last much longer than special committees, as the very term “special” suggests. Joint committees, instead, differ manifestly from the other committee categories, especially for their composition, which is given by an equal number of Representatives and Senators. Id., at 2.
399 W
OODROW WILSON, Cabinet Government in the United States, in MARIO R.DI NUNZIO (ed.),
Woodrow Wilson: Essential Writings and Speeches, 219 (New York: New York University Press,
2006) (quoted in JAMES J.MARQUARDT, Transparency and American Primacy in World Politics, 71 (Burlington, VT: Ashgate, 2011)).
400 W
OODROW WILSON, Congressional Government: A Study in American Politics, 84 (Boston and New York, 1885) (maintaining that congressional committees are “accustomed to hold their sessions in absolute secrecy.”) Since committee business is governed by a rule of secrecy, transparency of proceedings and debates through open-door sessions – the Author argues – ends up being a sort of “concession” granted by committees. Ibid.
401 See R
UDESILL, Coming to Terms with Secret Law, supra note 338, at 254-255.
402 Id., at 255. 403 W
ILSON, Congressional Government, supra note 400, at 82 (contending that “it is the discussions which take place in the Committees that give form to legislation.”)
101
not overestimating the impact of committee secrecy. When drafting legislation, Congress benefits from frank discussion and competent advice, which are more likely to arise behind the closed doors of committee hearings and meetings405. The veil of secrecy that covers up committee proceedings and debates allows everyone involved – not only members of Congress, but also the officers, scholars, and stakeholders participating in hearings – to express their position freely, and even though full discussion may generate conflicts, it favors a better balancing of the interests at stake406. Therefore, secrecy is justified by the nature of committee activities, which end up resembling those carried out in workshops. In Wilson’s opinion, indeed, committees – namely, standing committees – “are legislative workshops that conduct their affairs ‘separately and in secret.’”407 Committee business comes down to “a joust between antagonistic interests,”408 while the battle on principles is up to the floor. Even if committee activities were published in detail – the Author continues – their verbatim accounts would be of little use to the public, and thus would represent no significant contribution to the democratic principle409. Wilson concludes that reduced transparency is totally consistent with the nature of committee business, which is instrumental to the powers vested in the two Houses of Congress410.
Specific regulation governs secrecy in congressional committees. As for the House of Representatives411, first of all, Rule XI(e)(1)(A) requires that each committee keep a
405 Id., at 82 (maintaining that the “siftings of legislative questions by the Committees are of great
value in enabling the House [and the Senate] to obtain ‘undarkened counsel’ and intelligent suggestions from authoritative sources.”)
406 Id., at 82-83 (observing that “the controversies which spring up in the committee-rooms, both
amongst the committee-men themselves and between those who appear before the Committees as advocates of special measures, cannot but contribute to add clearness and definite consistency to the reports submitted to the House [and to the Senate].”)
407 MARQUARDT, Transparency and American Primacy, supra note 399, ibid. (quoting WOODROW
WILSON, Congressional Government: A Study in American Politics, 133 (New York: The World Publishing Company, 1964)).
408 W
ILSON, Congressional Government, supra note 400, at 85.
409 Ibid. (arguing that debates taking place in committees (and subcommittees) of Congress “could
scarcely either inform or elevate public opinion, even if they were to obtain its heed.”)
410 Id., at 83 (contending that a reason for excluding the publication of committee proceedings is that
committees are “commissioned, not to instruct the public, but to instruct and guide the House [and the Senate].”)
411 Rule X(1)(a)-(t) of the House of Representatives lists the standing committees the House itself is
composed of and the subject matters entrusted to each of them. Under the general principle given in Rule XI(1)(a)(1)(A), the Rules of the House of Representatives also apply to its committees and subcommittees, within the limits of applicability.
102
complete record of all its proceedings and activities. By using wording that recalls the regulation of the Congressional Record contained in the U.S. Code, Rule XI prescribes that committees ensure “a substantially verbatim account of remarks actually made” in the course of hearings or meetings, and allows for only slight editing of delivered speeches “[due to] technical, grammatical, [or] typographical [reasons].” Mandatory transcript extends to any vote taken, whose record has also to be made available in electronic form, and a summary description of the subject matter of any vote is requisite, as well412. All records of a given committee are to be physically separated from the congressional records pertaining to the Representative serving as chair of that committee. The former are property of the House, and any Member, officer, or employee of the House is entitled to gain access to them413. Furthermore, Rule XI(e)(5) directs committees to have each hearing and meeting taped in both audio and video formats414, and to ensure that the recording be of easy access to the public415. Rule XI(g)(1) requires that each meeting of any standing committee or subcommittee be “open to the public, including to radio, television, and still photography coverage.” In the course of an open meeting, however, if the majority of the members is present, a committee or subcommittee is allowed “by record vote” to switch the remainder of the meeting into executive session and therefore into a secret session. The doors of the meeting may be closed when the disclosure of the matters the committee or subcommittee is to deal with “would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade, or incriminate any person, or otherwise would violate a law or rule of the House.” The same provision is established by subparagraph (2)(A) with respect to committee or subcommittee hearings. Either rule on the shielding of business from public access do not apply to meetings or hearings held by the Committee on Ethics or its subcommittees. Under subdivision (C), members, officers, or other staff may be denied by majority vote of a committee or subcommittee “nonparticipatory attendance” of a given hearing or of a series of hearings for the same reasons meetings and hearings may be closed to the general public. As for the Committee on Ethics, by contrast, secrecy is the general rule, while openness is the exception. Rule XI(3)(h)(1), indeed, requires that all meetings and hearings be held in executive session and therefore in secret. This secrecy rule is subject to two exceptions: one established by the
412 Rule XI(e)(1)(B)(i). 413 Rule XI(e)(2)(A). 414 Rule XI(e)(5)(A). 415 Rule XI(e)(5)(B).
103
provision itself; it is for the members of the Committee, instead, to invoke the other. As far as the former is concerned, whenever the Committee holds a hearing devoted to sanctions, or a hearing takes place before an adjudicatory subcommittee, the hearing is open to the public. This exception, however, can be overcome by a majority vote of the committee that opts for a closed-door hearing416. Furthermore, the committee members are empowered to avoid that meetings and hearings be held in executive session, and thus be governed by a secrecy rule by adopting a majority vote that allows the public into the meeting or hearing. Finally, Rule XI(4) addresses audio and video coverage of committee proceedings. The scope of this coverage embraces all committee meetings and hearings that are accessible to the public417. Rule XI(4)(a) suggests that committees’ transparency enables the people to better grasp the importance of the House as a body of the federal Government, thereby implying that when such transparency is missing and audio and video coverage of committee business is not permitted, the functions of the House appear more obscure to the general public.
Similarly, the Senate committees have their own regulation of activities carried out in secret418. Rule XXVI(5)(b) of the Standing Rules of the Senate requires the openness to the public of any committee or subcommittee meeting, including those devoted to the conduction of hearings. Any Senator, however, is entitled to present a motion for the closing up of a meeting or a series of meetings, and if other members second the motion, the closing up is permitted, but it may not last more than fourteen calendar days. The matters, the discussion of which justifies the exclusion of the public from a meeting or a series of meetings are set out in clauses (1) through (6). More markedly than what the Rules of the House of Representatives do when pinpointing the reasons for closed-door meetings and hearings, those clauses recall some of the nine exemptions to the Freedom of Information Act, which allow executive branch agencies to withhold information from the public. Clause (1) refers to the two domains that are located at the core of executive branch secrecy – national security and foreign affairs. Clause (2), instead, authorizes a meeting or a series of meeting to be held in secret when the matters to discuss are concerned with committee staff
416 Rule XI(3)(h)(2). 417 Rule XI(4)(e).
418 After providing that the Senate standing committees are to be appointed “at the commencement
of each Congress,” and are subject to the principle of continuity in the carrying out of business, paragraph 1 of rule XXV of the Standing Rules of the Senate enumerates the existing standing committees (subparagraphs (a) to (p)). The number of Senators each committee has to consist of is set forth by paragraphs 2 and 3 of the same rule.
104
personnel or purely internal procedures. Under clause (3), secrecy is possible when the matters to consider or the testimony to be taken at a meeting or more meetings may result in charging an individual with crime or misconduct, “or will represent a clearly unwarranted invasion of the privacy of an individual.” Clause (4) identifies the confidentiality that surrounds law enforcement investigations as a cause for secret meetings of Senate committees. Clause (5) pertains to financial or commercial information and to trade secrets that may be included in it, and allows a committee to hold closed-door meetings if either an act of Congress calls for confidentiality in the handling of that information or the unduly disclosure of the information would compromise competition by harming the position on the market of the concerned individual. Finally, clause (6) refers to other matters that statutes or executive branch regulations prescribe to be kept confidential. In addition, the closing of a committee meeting may represent a measure the Chair of the committee adopts to maintain order whenever disorder or protests spring up during an open meeting419. Each committee is required to keep a complete transcript or electronic recording of all its proceedings, even if some business is transacted in secret, unless a committee determines by a majority vote the exclusion of part of its proceedings from recording420.
F. The Theory of Bleisch on Accuracy of the Congressional Record